The Supreme Court on Monday reserved interim orders on a batch of petitions seeking investigation into the alleged illegal use of Pegasus spyware to snoop civilians, journalists, etc.
The development comes as the Centre has expressed unwillingness to file an affidavit in the matter, citing concerns over national security.
"We thought the Government will file a counter-affidavit and will decide further course of action. Now the only issue to be considered is the interim orders to be passed," the CJI said at the outset.
The Court said that it will pass the order within 2-3 days. It also added that the Solicitor General can mention the matter before it in the meanwhile if there is any "rethinking" on its part.
A bench comprising the Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli repeatedly said that it does not want any information relating to national security and that it was only concerned with allegations of rights violation raised by ordinary citizens through illegal use of the spyware.
The Petitioners have sought an interim prayer to direct the filing of a disclosure affidavit by the Cabinet Secretary. They also seek constitution of an independent committee/ SIT, led by a retired judge to investigate the matter.
The Government on the other hand claims that the issue involves aspects of national security and hence it cannot be debated on affidavit. The Court had adjourned the matter to today to know if the Government will file an affidavit stating whether it has used Pegasus spyware or not.
Solicitor General Tushar Mehta submitted that the issue cannot be made a subject matter of "judicial debate" or "public discourse" and cannot be stated in an affidavit. He reiterated the earlier stand of the Government that a committee constituted by it will examine the issue.
"Suppose I am saying that I am not using this software. Then it will alert the terrors group. If I say I am using this software, please remember, every software has a counter-software. The groups will take pre-emptive steps," Solicitor General Tushar Mehta submitted.
He urged the Bench to let Government constituted expert Committee to look into the matter, whose report will be placed before the Supreme Court.
"We are again reiterating we are not interested in knowing matters related to security or defence. We are only concerned, as my brother said, we have journalists, activists etc before us…to know whether Govt has used any method other than admissible under law," CJI NV Ramana said.
No unauthorized interception: SG Mehta
SG Tushar Mehta also claimed that there has not been any unauthorized interception and nonetheless, the Centre has constituted an expert Committee to look into the matter, whose report will be placed before the Supreme Court.
"I have already filed an affidavit that as per the statutory regime in India, namely IT Act and Telegraph Act in general and Section 69 IT Act in particular, there has been no unauthorized interception. Centre has informed this to Parliament. Nonetheless, the issue is important. So, we have expressed our willingness to constitute a committee," SG said.
He stressed on the IT Minister's statement that any form of illegal surveillance is not possible within our robust system of checks and balances. He added,
"If some individuals are claiming invasion of privacy, the government takes it seriously. It has to be gone into and it will be gone into. For this, the government has suggested the formation of a committee. However, making the issue regarding use of Pegasus a matter of affidavit or public discourse will not be interest of national security or larger national interest."
However, the Bench responded,
"Appointing a committee or making inquiry is not the question here. If you file an affidavit then we know where you stand... there is an established procedure for interception."
The fact that Govt have not denied, it means that they have used Pegasus: Sibal
Senior Advocate Kapil Sibal appearing in the PIL filed by senior journalists N Ram and Sashi Kumar, submitted that State cannot act in a matter which prevents the court from rendering complete justice by withholding information.
"My learned friend is saying that it will be detrimental to national interest. I'm sorry, to say that will be detrimental to justice," Sibal remarked.
He referred to the Ram Jethmalani case (black money case) where the Supreme Court had opined,
"State has a duty to reveal all information to the court and the petitioners. In a matter relating to violation of fundamental rights, state cannot act like an adversary…Withholding of information by the state is a violation of the freedom of speech and expression of citizens."
Sibal also expressed concern over Government's conduct in not taking any action against the alleged use of an illegal spyware on its citizens.
"International agencies have accepted the fact that Indian were targeted. Experts have said phones of Indians have been hacked. They have no bias against India. Yesterday, Germany also accepted that. But the Govt of India does not want to accept.
"In 2019, the Minister spoke about this. About targeting of individuals. What action state has taken? Have they filed an FIR? Have they acted against NSO?" he asked.
In support of Petitioners' prayer for independent probe into the alleged illegal use of snoop gate, Sibal referred to the Hawala case where a panel of retired judges were constituted to probe the allegations.
"Why should the government be allowed to form a committee on its own? It should be completely away from govt control," he said.
Pegasus can implant false data and documents in the device: Sr Adv Shyam Divan
While urging the Supreme Court to pass interim reliefs in the matter, Senior Advocate Shyam Divan, appearing for activist Jagdeep Chhokkar who is reported to be a Pegasus target, pointed out that Pegasus is not like wire-tapping. "Pegasus is not just a surveillance mechanism. It can implant false data and documents in the device," he said.
"If Pegasus is deployed by an external agency, it is the duty of the Government of India to protect the citizens. If it is deployed by the Government of India, my submission is, this cannot be done under the IT Act."
No specific denial about use of Pegasus: Sr Adv Dinesh Dwivedi
Senior Advocate Dinesh Dwivedi, appearing for journalist Paranjoy Guha Thakurta whose names were in the potential list of Pegasus targets, submitted,
"The statements in the Government affidavit are contradictory. In one place they say that the allegations are baseless but in other place they say allegations are serious and so they are constituting a committee."
He pointed out that the Government has not denied the factum about snooping of Thakurta's phone.
In this regard he referred to Order 8 Rule 3 of CPC which says that a denial by a Defendant must be specific and denial should not be general. He also cited Rule 5 Order 8 CPC to state that facts which are not denied specifically must be construed to have been admitted.
"Petitioner is a journalist. If there is snooping, a journalists' right to speech and expression gets affected and not just right to privacy… The question of chilling effect on speech is arising loud and clear in this case," he added.
Allowing Govt constituted committee to examine allegations affects Credibility: Sr Adv Rakesh Dwivedi
Senior Advocate Rajesh Dwivedi, appearing for journalist SNM Abidi, submitted that allowing the Government to constitute a committee and asking Petitioners phones to be surrendered to it will be a secretive exercise. "It will not be a credible exercise in which people of the country will have faith," he remarked.
He added that had the government made a statement at least saying that it has not used the malware or spied on the petitioners, that would have been the end of the matter.
"The Govt should be asked to say if they have used the spyware or not. Second this, your lordships should enquire into matter instead of a govt committee," Dwivedi urged.
Senior Advocate Meenakshi Arora, appearing for CPI(M) Rajya Sabha MP John Brittas, urged the Court to constitute a Special Investigation Team headed by a retired judge to investigate the matter.
Senior Advocate Colin Gonsalves, appearing in petitions filed by SFLC and alleged Pegasus target Degree Prasad Chouhan, stated that there are reports indicating that Central Govt and States are indulging in widespread interception. "If that is the case, we cannot rely on the principal wrong doer to form a committee and do an investigation," he said.
No reason to doubt credibility of Govt appointed committee: Solicitor General Tushar Mehta
"There is a marginal difference between protecting the rights of citizens and entering the zone where we will compromise national security," SG Mehta said in Centre's defence.
"There is a statutory regime in place. Interception per se is not an impermissible activity. All technologies can be used and abused. Govt's commitment becomes apparent from the fact that it says let all these issues go before domain experts… There is no reason to doubt the credibility of the committee. The experts will have no relation with the government. Second thing, the report will come before your lordships… The committee will be answerable to the court."
The CJI told the Solicitor General that "beating about the bush" will not solve the issue, and reserved interim orders in the case.
"We are reserving and will pass an interim order. It might take 2-3 days to pass the orders. Mr.Mehta, if there is any rethinking, you can mention the matter before us", the CJI told the Solicitor General before rising.
The Supreme Court had on 17th August issued notice before admission to the Central Government in the batch of petitions.
The Central Government had told the Supreme Court that it does not want to file any additional affidavit in the Pegasus issue, as national security aspects are involved. The Centre had added that it is willing to place the details before the expert committee proposed to be constituted by it to examine the issues.
The Solicitor General of India Tushar Mehta therefore told the Court that the affidavit already filed by the Centre in the case is "sufficient" and a further affidavit is uncalled for. The Solicitor said that if the Government is disclosing in public that it is not using a particular interception software, the terrorist organizations will take advantage of that information to change their communication settings.
At the same time, the Solicitor had stated that the Government will place all the details before the proposed technical committee, which he assured, will consist only of neutral officers.
The bench had clarified that it does not want to compel the Government to disclose any information or to compromise national security. The bench orally said it only wants information regarding authorization for alleged interception of the phones of civilians.
"We had thought a comprehensive reply will come but it was a limited reply. We will see, we will also think and consider what can be done. We will discuss what needs to be done, if committee of experts needs to be made, or some other committee", the Chief Justice of India said.
On August 12, the Solicitor General of India Tushar Mehta had sought time to get instructions from the Union Government as regards the response to the pleas.
The Pegasus controversy erupted on July 18 after The Wire and several other international publications published reports about the mobile numbers which were potential targets of the spyware service given by NSO company to various governments, including India. 40 Indian journalists, political leaders like Rahul Gandhi, election strategist Prashant Kishore, former ECI member Ashok Lavassa etc are reported to be in the list of targets, as per The Wire.
Several petitions were thereafter filed before the Top Court seeking independent probe into the matter, notice whereupon is yet to be issued. However, the Top Court has expressed concern over the alleged incident, saying that no doubt, the allegations are serious, if the reports are true. "Truth has to come out, that's a different story. We don't know whose names are there", CJI NV Ramana said.
The petitions have been filed by several people including Advocate ML Sharma, journalists N Ram and Sashi Kumar, CPI(M) Rajya Sabha MP John Brittas, five pegasus targets( Paranjoy Guha Thakurta, SNM Abdi, Prem Shankar Jha, Rupesh Kumar Singh and Ipsa Shataksi), social activist Jagdeep Chhokkar, Narendra Kumar Mishra and the Editors Guild of India.